Justice Kennedy seems to doubt the legitimacy of gay identity

When it comes to anti-gay bakers, Kennedy may have reached his limit on gay rights.

Justice Anthony Kennedy has been the swing vote, and not coincidentally the author, of the Supreme Court’s four big gay rights decisions over the past three decades. But in oral arguments Tuesday for Masterpiece Cakeshop v. Colorado Civil Rights Commission, Kennedy seemed to indicate there’s a limit to his support for gay rights — one that might even explain why those other four rulings were conspicuously narrow.

Kennedy clearly indicated, both in his 2015 marriage equality ruling and during Tuesday’s arguments, that he is sympathetic to the baker Jack Phillips and others who hold a view opposing same-sex marriage. But he also went further Tuesday, making a series of comments suggesting that he thinks it’s reasonable, when discussing people who are gay, lesbian, and bisexual, to distinguish between their “identity” and “behavior” — a tactic used by opponents of LGBTQ equality to delegitimize those identities. Here’s Kennedy’s exchange with David Cole, the ACLU’s lawyer representing Charlie Craig and David Mullins, the same-sex couple Phillips refused to sell a wedding cake:

COLE: …[T]he public accommodations law does not say you must treat everybody; it says you cannot discriminate on the basis of protected categories.

KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says, but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not — It’s not their identity; it’s what they’re doing. I think it’s — your identity thing is just too facile.

It’s not clear from the transcript exactly where in that passage Kennedy stops hypothetically quoting Phillips and starts speaking for himself, but he is certainly addressing Cole directly when he refers to the “identity thing” as being “too facile.” Including sexual orientation as a class protected under the law and recognizing it as an identity, Kennedy seems to be suggesting, is trying to simplify something more complex in a way that doesn’t jibe with his legal reasoning.

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It’s quite possible Kennedy was just playing devil’s advocate to challenge the arguments Cole was making, as is common during oral arguments, but it could also be a revelation about his understanding of sexual orientation — one that explains a thread found throughout all of his past decisions in gay rights cases.

Kennedy has authored all four of the Court’s decisions supporting gay rights:

In each of these cases, Kennedy wrote the opinions in such a way that seemed designed to avoid establishing any broad legal precedents. Essentially, he was advancing gay rights through baby steps, keeping a tight hold on the progress each decision could actually catalyze so that it accomplished his intentions and little more. Notably, Kennedy conspicuously avoided recognizing sexual orientation as a “suspect class” (like race) or “quasi-suspect class” (like sex) deserving of some level of heightened scrutiny by the Court.

Though there is no set test for determining who qualifies as a “suspect class,” the Court has generally evaluated four criteria:

Has the group been historically targeted for discrimination, prejudice, hostility, or stigma?

Is the group united by a distinguishing trait that does not prevent them from contributing meaningfully to society?

Are they powerless to protect themselves from political processes that might target them?

Do they have an immutable (unchangeable) or highly visible trait?

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Kennedy has touched on some of these points in his decisions. In Obergefell, he noted, for example, that same-sex couples have been subjected to a “long history of disapproval of their relationships” and that they “have the same right as opposite-sex couples to enjoy intimate association.” In Romer, he observed that “homosexuals… can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability.”

In Obergefell, Kennedy did refer to sexual orientation as having an “immutable nature,” but he did not incorporate that into his decision, and his comment Tuesday might explain why. If he has concerns about understanding sexual orientation as an inherent identity, then perhaps he believes homosexuality is actually just a set of behaviors that a person chooses for their life. This wouldn’t preclude recognizing same-sex couples and their families, as he did in Obergefell and Windsor, nor would it preclude protecting private consensual behavior, as he did in Lawrence.

It also might explain how narrowly he decided Romer. The Colorado Supreme Court had ruled against Amendment 2 by invoking “strict scrutiny,” the highest standard the Court applies, recognizing that it unfairly targeted gay, lesbian, and bi people. Though Kennedy agreed with the Court that the amendment “imposes a broad disability” on LGB people, he chose a different rationale that allowed him to skirt applying that level of scrutiny. Instead, he found simply that Amendment 2 “lacks a rational relationship to legitimate state interests.” In other words, he applied the Court’s lowest level of scrutiny (rational basis review), but still found that the discriminatory measure failed. In doing so, he avoided establishing as broad a precedent for scrutinizing laws that target LGB people.

It could be that, in 1996, Kennedy did not feel the country was “ready” for how quickly gay rights would advance if he had recognized sexual orientation as a suspect or quasi-suspect class. Certainly, the fates of sodomy laws (2003), LGB military service (2011), and marriage equality (2015) would have been determined at a far more rapid pace than the way history actually played out.

But it’s also possible that Kennedy has never actually thought same-sex orientations were immutable, and thus Colorado’s law protecting a same-sex couple from discrimination exceeds his limit for stretching the Constitution to protect LGB people. This possibility is further substantiated by Kennedy’s suggestion that “other good bakery shops were available,” implying that — assuming he wasn’t playing devil’s advocate again — Phillips’ discrimination did not significantly burden the couple. Kennedy’s pronounced concern for same-sex couples’ “dignity,” expressed repeatedly in both Windsor and Obergefell, was absent from his remarks on Tuesday.

Instead, Kennedy’s comments sounded more like the late Justice Antonin Scalia, who dissented in all four of the gay rights cases. In his dissent in Romer, Scalia described Colorado’s Amendment 2 as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores.” The Court had “no business,” Scalia wrote, “pronouncing that ‘animosity’ toward homosexuality is evil. I vigorously dissent.”